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United States v. Iverson

United States Court of Appeals, Fifth Circuit

October 31, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee
v.
MICHAEL GEORGE IVERSON, also known as Michael George Byrnes, also known as Michael Byrns, also known as Michael G. Iverson, also known as Mike Bernard, also known as John P. Byrns, also known as Michael Barnes, also known as J. D. Barnes, also known as Michael Belanger, also known as Michael Byrne, also known as Mike Barnes, also known as Michael Belager, also known as J. D. Byrns, also known as Mike Byrns, Defendant-Appellant

         Appeal from the United States District Court for the Western District of Texas

          Before WIENER, HIGGINSON, and COSTA, Circuit Judges.

          GREGG COSTA, CIRCUIT JUDGE

         Michael Iverson pleaded guilty to failure to register as a sex offender. He now challenges the length of his prison term and some of the conditions of his supervised release. The principal question his appeal raises is whether the Sentencing Guidelines' obstruction-of-justice enhancement covers false statements made to obtain appointed counsel. We join the majority side of a circuit split in concluding that it does.

         I.

         Iverson was required to register under the Sex Offender Registration and Notification Act because he had been convicted of rape and kidnapping in New York. Because he was classified as a sexually violent offender under New York law, Iverson had to register every 90 days. Although Iverson moved to Texas in 2013, he never registered in the state. The authorities learned about Iverson's failure to register when they arrested him in Guadalupe County on a parole violation warrant.

         Iverson was convicted of failure to register as a sex offender, and the district court imposed a sentence of thirty-seven months, which was the low end of the Guidelines range. That range included a two-level enhancement for obstruction of justice. The presentence report (PSR) recommended that enhancement because Iverson "admitted to intentionally lying to U.S. Pretrial Services regarding the value of his assets with intentions to make himself appear more destitute." That false statement, which the magistrate used to determine eligibility for court-appointed counsel, was included in a financial affidavit that Iverson signed under penalty of perjury. In the affidavit, Iverson claimed the value of three vehicles he owned was $5, 500, much less than the $18, 500 later listed in the PSR.

         The district court also required Iverson to serve five years of supervised release after he finishes his prison term. As part of that supervision, it required that Iverson abide by a number of special conditions typically directed at sex offenders.

         II. A.

         Iverson contests the obstruction enhancement on two grounds. He first argues that making misrepresentations on a pretrial financial affidavit does not fall within the Guidelines' definition of obstruction of justice because it does not interfere with the investigation or prosecution of the offense. If Iverson loses that legal argument, he also maintains that he did not intentionally mislead the court in seeking appointed counsel.

         The enhancement applies when "(1) the defendant willfully obstruct[s] or impede[s], or attempt[s] to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and (2) the obstructive conduct relate[s] to (A) the defendant's offense of conviction and any relevant conduct; or (B) a closely related offense." U.S.S.G. § 3C1.1. On its face, that language appears to include lying to a court to obtain free counsel. Procuring the financial resources of a court under false pretenses interferes with the proper administration of the criminal justice system. And that obstruction is with respect to, and relates to-that is, it occurred in connection with-the prosecution of Iverson's failure-to-report offense. The commentary to this section also lists examples of obstruction, which include producing a "false, altered, or counterfeit document or record during an official investigation or judicial proceeding" and "providing materially false information to a judge or magistrate judge." Id. at cmt. n.4(C), (F). Lying on a financial affidavit used by a magistrate judge to assess eligibility for appointed counsel falls within either example.

         We have applied the enhancement to false statements made to obtain appointed counsel, albeit in unpublished opinions only briefly addressing the question. See United States v. Sanchez, 227 Fed.Appx. 412, 413 (5th Cir. 2007) ("False statements on a financial affidavit can serve as the basis for the obstruction adjustment."); United States v. Resendez, 1999 WL 499774, at *1 (5th Cir. June 16, 1999) (also finding no error in applying the obstruction enhancement because the defendant submitted a false financial affidavit). Other circuits have divided on this question. Two agree with our unpublished cases in applying the obstruction enhancement to false statements made to a court in connection with obtaining appointed counsel. See United States v. Hernandez-Ramirez, 254 F.3d 841, 842-43 (9th Cir. 2001); United States v. Ruff, 79 F.3d 123, 125-26 (11th Cir. 1996); cf. United States v. Greig, 717 F.3d 212, 220-22 (1st Cir. 2013) (applying the enhancement to false statements made in connection with obtaining bail).

         But the Second Circuit holds that a false statement that only has the effect of obtaining free counsel does not qualify for the obstruction enhancement. United States v. Khimchiachvili, 372 F.3d 75, 80, 82-83 (2d Cir. 2004). The disagreement among these circuits is over whether the defendant's false statements must have been intended to undermine the investigation or prosecution of the offense. Compare id. at 80 (holding that the enhancement only applies to conduct that is intended to affect or "interfere with the disposition of the criminal charges against a defendant"), with Ruff, 79 F.3d at 126 (explaining that false statements made to a judge need not have an "effect on the investigation or prosecution" and "the sole question is whether [the] statement was material").[1]

         In concluding that a false statement to a court must be intended to prevent or delay justice, as opposed to just being the product of wanting a free lawyer, the Second Circuit cited its common understanding of obstruction and a 1998 amendment to the adjustment. Khimchiachvili, 372 F.3d at 78-80. As to the ordinary meaning of obstruction, the Second Circuit may have overlooked a distinction between false statements made to judicial officers and false statements to law enforcement officials that may nonetheless have an effect on the proceeding. We have recognized that attempts to improperly influence judicial proceedings more directly interfere with the administration of justice than does similar conduct occurring in non-judicial contexts. See United States v. Reeves, 752 F.2d 995, 999 (5th Cir. 1985) (comparing an obstruction statute applying only to judicial proceedings, in which many acts can be deemed "per se corrupt, " with an obstruction statute not limited to conduct in court, which thus required a heightened showing of corrupt intent). The commentary to the obstruction enhancement also makes this distinction, as the Eleventh Circuit has recognized. See Ruff, 79 F.3d at 125-26 (underscoring "the importance of the identity of the person to whom the false statement is provided" (quoting United States v. Mafanya, 24 F.3d 412, 415 (2d Cir. 1994))). As noted above, the commentary lists "providing materially false information to a judge" and producing a false document during an investigation or judicial proceeding as examples of obstructive conduct without any need to show the effect of that conduct. U.S.S.G. § 3C1.1 cmt. n.4(C), (F).[2] In contrast, when ...


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